Plaintiff
Wilmer Guevara brings a Title VII claim for discrimination
based on national origin, claiming that he was fired from his
police officer job for conduct that earned white officers
only a suspension. Defendant Las Vegas Metropolitan Police
Department (LVMPD) moves for summary judgment on the grounds
that Guevara fails to make a prima facie claim and, even if
he did, LVMPD had a legitimate, race-neutral reason for the
termination that Guevara cannot show is pretextual.

Genuine
issues of material fact preclude me from making either
determination as a matter of law. Guevara offers significant
evidence of similarities between his conduct and that of the
suspended white officers. I therefore deny LVMPD's motion
for summary judgment.

I.
BACKGROUND

Guevara
is a Hispanic LVMPD police officer. ECF No. 29 at 3. On April
4, 2012, Guevara told LVMPD dispatch that he was working in a
certain area when in reality he was on vacation. Id.
He apparently wanted to hide his whereabouts from his
then-girlfriend, who also worked at LVMPD. Id. On
June 28, 2012, he again called dispatch while on vacation to
report that he was working, but this time requested that
dispatch show him as assigned to another officer's car.
Id. at 3-4.

When
Guevara's misconduct was discovered, an investigation and
disciplinary proceeding ensued. His direct supervisor
recommended termination for “untruthfulness and
egregious behavior, ” which was affirmed by a hearing
board and finally approved by Sheriff Doug Gillespie.
Id. at 4-5; ECF No. 34-2 at 7.

Guevara
admits his conduct, but argues that white officers who
committed similar misconduct only received 40-hour
suspensions. He refers to two cases. In one, an officer
falsely reported to dispatch on eight occasions as patrolling
a general area when instead she was in an apartment having
sex with a fellow officer. ECF No. 34 at 2. In the other
case, two officers reported they were at family court when
instead they took their patrol car on a joy ride to the Grand
Canyon, where they were pulled over by local deputies for
speeding. Id. Because both cases involved at least
similarly egregious behavior-an officer misrepresenting to
dispatch that he or she was on duty-Guevara argues there is
no legitimate reason for his harsher punishment.

II.
ANALYSIS

Summary
judgment shall be granted when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). The
moving party “has the initial burden of showing the
absence of a genuine issue of material fact.”
Pioneer Chlor Alkali Co., Inc. v. Nat'l Union Fire
Ins. Co. of Pittsburgh, PA, 863 F.Supp. 1237, 1239 (D.
Nev. 1994) (citations omitted). “A material issue of
fact is one that affects the outcome of the litigation and
requires a trial to resolve the differing version of
events.” Id. (citations omitted). Once the
moving party satisfies its initial burden, the burden shifts
to the non-moving party to set forth specific facts showing
that there is a genuine issue for trial. Id.
(citations omitted). The non-moving party “may not rely
on denials in the pleadings but must produce specific
evidence, through affidavits or admissible discovery
material, to show that the dispute exists.” Bhan v.
NME Hosp., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991).

Here,
LVMPD asserts Guevara cannot establish a prima facie case for
discrimination based upon national origin. For Guevara to
succeed on that claim, he must demonstrate: 1) he belongs to
a protected class; 2) he was qualified for the job; 3) LVMPD
subjected him to an adverse employment action; and 4)
similarly situated employees who are not members of his
protected class were treated more favorably. Chuang v.
Univ. of Cal. Davis Bd. of Trustees, 225 F.3d 1115, 1123
(9th Cir. 2000). LVMPD can rebut Guevara's prima facie
case of discrimination by pointing to a legitimate,
non-discriminatory reason for the adverse employment action.
Id. at 1123-24. If LVMPD does so, then Guevara may
attempt to demonstrate this proffered reason is pretextual.
Id. A genuine issue of material fact concerning any
of these proofs will defeat a motion for summary judgment.

Both
parties agree Guevara is Hispanic, which is a protected
class, and that his termination was an adverse employment
action. LVMPD's main argument focuses on the fourth
element: it contends that the white officers who were
suspended were not similarly situated to Guevara, thereby
attempting to justify the disparate treatment.[1] LVMPD argues
that, by logging himself into another officer's car,
Guevara put that officer at risk of being called to
situations that demanded two officers-a factor not present in
either of the comparison cases. ECF Nos. 29 at 8, 37 at 2-3.
Guevara responds that LVMPD overstates the danger to the
officer, and that this does not meaningfully distinguish the
untruthfulness or egregiousness of his case from the others.
He also contends that LVMPD undersells the dangerousness of
the conduct of the officers in the other cases. ECF No. 34 at
5-7 (citing Garrett v. City and County of San
Francisco, 818 F.2d 1515, 1519 (9th Cir. 1987) for the
proposition that, in disparate discipline cases, the
misconduct need only be “similar acts of wrongdoing of
comparable seriousness, ” not identical). LVMPD also
offers the distinction that Guevara showed a “lack of
remorse for his actions, ” whereas the officers in the
other cases expressed remorse. ECF No. 29 at 4-5. Guevara
denies this, pointing to his testimony before the hearing
board where he apologized at length for his actions. ECF No.
34 at 8. Both sides offer evidence and detailed reasoning in
support of their arguments, creating genuine issues of
material fact that I cannot resolve in a motion for summary
judgment.

These
same issues of material fact also preclude me from ruling as
a matter of law whether LVMPD's proffered reason is
pretextual. See Vasquez v. Cty. of Los Angeles, 349
F.3d 634, 641 (9th Cir. 2003) (“A showing that the
County treated similarly situated employees outside
Vasquez's protected class more favorably would be
probative of pretext.”).

LVMPD
has not carried its burden of showing no genuine issue of
material fact exists either as to whether Guevara suffered
prima facie discrimination or whether LVMPD's proffered
non-discriminatory explanation was pretextual. LVMPD is not
entitled to summary judgment.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;III.
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